The Family Law Act allows for different ways for separated couples to settle their property matters there are two popular options are binding financial agreements vs consent orders. They each offer potential benefits and drawbacks depending on each party’s individual circumstances. Understanding these factors can help you decide which is best for your situation.
Key takeaways
BFAs settle financial arrangements without input from the Court.
Consent orders allow parties to agree to financial or parenting arrangements with court approval.
There are several key differences between BFAs and consent orders.
Various factors may affect which method is right for your unique circumstances.
What Is a Binding Financial Agreement?
BFAs are the only way that couples can make legally binding arrangements to divide their property after separation without Family Court involvement. They enable parties to make a private contract that sets out the terms of a property settlement using a binding financial agreement. BFAs can be entered into by married couples and those in a de facto relationship.
What Are Consent Orders?
Many people think of court orders as only coming from litigation. However, it’s possible for parties to agree to a court-approved property settlement. Consent orders can take care of a couple’s financial relationship and parenting matters, and an overview of what a consent order is in family law can help you understand when they are appropriate.
Key differences between binding financial agreement vs consent orders
Knowing the differences between the different ways to organise your financial matters can help you determine which one could work for you. Here are some of the differences between BFAs and consent orders.
Flexibility
One of the potential benefits of a BFA is the flexibility it may offer. Since it doesn’t require court approval, a BFA may, in theory, contain whatever agreement the parties are willing to enter into.
Consent orders can be a little more constrained. Proposed consent orders are assessed by the Court using a four-step process. That means the draft orders have to satisfy criteria that are external to the private agreement entered into by the parties, and understanding the step-by-step process to obtain consent orders can make this clearer.
Legal requirements
There are certain criteria that are shared by BFAs and consent orders. For example, the parties need to make a full and frank disclosure of their financial circumstances. There also cannot be any indication of coercion or duress.
However, each method also has its own criteria that need to be met for the arrangement to be legally enforceable. BFAs require both parties to receive independent legal advice. Consent orders have to pass the Court’s four-step process, so carefully preparing for a consent order application is essential.
If you require assistance with consent orders or binding financial agreements, please do not hesitate to reach out to us.
Time limits
Time limits are another area where BFAs can offer a potential benefit, especially when compared with the overall timeline for obtaining consent orders. You can enter into a financial agreement at any time during or after a relationship. This allows them to be used as a pre-nuptial agreement.
Consent orders can only be made after a couple separates. Both methods share the same deadline after the separation process commences:
Married couples. The settlement must be started within one year of a divorce order coming into effect.
De facto couples. The settlement must be started within two years of the couple’s separation date.
Enforceability
BFAs and consent orders both have an advantage over informal agreements because they may be enforced through court intervention if they’re breached. However, they may not have the same chances of being successfully enforced.
Unlike consent orders, BFAs are created outside of the Court. That means they’re only truly tested when one party seeks to enforce them. This can make them less reliable than a consent order. BFAs can be challenged on a number of grounds, including:
Inadequate financial disclosure. The Court may find that one party didn’t properly disclose their finances. This non-disclosure can mean the agreement isn’t enforceable.
Duress or undue influence. BFAs can be challenged on the grounds that there’s evidence that a party to the agreement was coerced or forced into it. Financial agreements have to be entered into freely.
Unconscionable conduct. One partner may use some unfair advantage they have to force the other party to accept lopsided terms. For example, one party may be concerned about their immigration status or have a poor grasp of English.
Impracticality. A significant change in circumstances can make a BFA impractical to adhere to. These changes could involve the birth of a child or employment concerns.
Consent orders are generally more legally sound since they have to get approved by the Court before being granted. As a result, they tend to be more difficult to overturn. However, there are grounds to challenge them, such as:
One or both parties didn’t meet their disclosure requirements.
There was duress or coercion involved.
A party isn’t able to meet their obligations under the order.
The order negatively impacts a child’s welfare.
Unforeseen circumstances have led to the order creating undue hardship.
Which One Is Right for You?
Which method is right for you will come down to your individual circumstances. Here are some factors to consider.
Asset pool complexity
Many property pools contain similar assets and liabilities, such as:
Marital home.
Bank accounts.
Superannuation interests.
Credit card debt.
Mortgage.
Some couples are dividing a particularly significant pool of assets and liabilities that can include complex property, including:
Multiple superannuation interests.
Investment properties.
Stock portfolios.
Business interests.
Some parties that have significant assets may value the flexibility of a BFA. It can be valuable to be able to precisely define how you wish certain assets to be managed. This can be important to protecting business interests in particular.
Many property pools don’t contain complicated assets like these. This can make consent orders more appropriate.
Cost of settlement
One major concern about BFAs may be their cost. A financial agreement is often a more expensive option because of its complexity and the need to get advice from a family lawyer. Legal fees can mount if the parties have to go through a lot of negotiation. This may not be as much of an issue if the asset pool is large.
However, for many people, it can make more sense to opt for a more cost-effective option, such as a consent order. Parties may obtain consent orders using a DIY kit, available from the Federal Circuit and Family Court of Australia website, but they should still be aware of the Application for Consent Orders filing fee and exemptions. However, seeking orders without legal advice may increase the risk of mistakes.
Relative financial position
It’s sometimes the case that one party in a marriage has access to more assets and financial resources. This can be an impetus to form a BFA as a financial settlement. This may enable the party with greater financial interests to put an agreement in place while the relationship is ongoing.
But this can put the more financially vulnerable party at a disadvantage. A BFA may be structured to privilege one partner. A consent order gives parties a lot more assurance that the agreement will be just and equitable.
Cost Comparison between BFAs and Consent Orders
BFAs are typically more expensive than consent orders. However, that can depend on several factors, many of which are explored in a broader guide comparing binding financial agreement vs consent orders. General costs can range between:
Consent orders. ~$1500-$3500 plus $205 filing fee.
BFAs. $3000-$5000. Complex BFAs can exceed $10,000.
Costs can vary widely based on the case’s complexity and the services that are needed. Assets such as superannuation interests and investment properties can attract higher fees. The amount of negotiation required can also affect the price.
From our clients
I would like to thank Peter, and Andrews Family Lawyers.
After 4 years of getting nowhere and seeing many other law practices I was recommended Peter Andrews. Peter was professional, straight forward, insightful and best of all had a realistic plan to achieve an outcome. Peter and the Andrews practice achieved what others couldn't.
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At Andrews Family Lawyers, our experienced team can help you with consent orders or binding financial agreements. Book a free consultation today.
Conclusion
Binding financial agreement vs consent orders provide two different ways to make financial arrangements. They each have potential pros and cons, depending on each party’s circumstances. Once you understand what each may offer, you can make an informed decision.
Are you looking for independent legal advice from a family lawyer?
Our experienced team at Andrews Family Lawyers in Brisbane can assist with proposed orders or a financial agreement, providing empathetic, client-focused family law representation. Contact us today for a free consultation.
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- Requirements for a Consent Order: Essential Documents & Information
- What’s Involved in a Consent Order? A Step-by-Step Guide When Obtaining Consent Order
- What is a Consent Order? The Basics of Legal Agreements in Family Law Matters
- Binding Financial Agreements and Property Settlement: How They Work Together?
- What Is a Binding Financial Agreement? Know How It Can Protect Your Assets
